An interesting case out of the Fourth Circuit was brought to my attention by this post by the Federal Criminal Appeals Blog entitled “Just Because It’s A Supervised Release Hearing Doesn’t Mean There Are No Rules.”
As the title suggests, federal probation revocation hearings are far less formal than a criminal trial. In fact, the rules that govern these hearings appear in only one section of the Federal Rules of Criminal Procedure: Rule 32.1. Below is an excerpt from the article.
Anthony Doswell was having a bad run of luck.
He was on supervised release from the end of a federal sentence. Supervised release works a bit like probation for those who have been in prison – folks coming out of a federal prison have a period of years where they have to check in with a probation officer, be drug tested, and, if they mess up, sent back to prison.
One big way to mess up is to commit a new crime. The rub is that a person can be violated – and sent back to prison – for committing a new crime, not just for being convicted of committing a new crime.
So, it’s possible for a person on supervised release to be charged with a new crime, beat the charge, then be sent to prison anyway.
Anthony Doswell was in a spot like that. He was on supervised release and had been charged with having some marijuana on his person. He also tested positive for heroin and didn’t show up to mental health treatment, or to meet with his supervising probation officer.
At the hearing, his lawyer learned that Mr. Doswell had previously been charged with heroin distribution.
Mr. Doswell objected to a violation of his supervised release based on the heroin. The government went forward with the allegation, providing the district court with the charging documents for the state court heroin distribution charge, as well as the chemist’s report.
The government did not call any witnesses.
The district court found that Mr. Doswell had violated his supervised release by selling heroin. As the Fourth Circuit summarized it,
Without explanation, the district court concluded that, “notwithstanding the objection,” the drug analysis report was “sufficient to support the [heroin] violation alleged.” Accordingly, the court found Doswell guilty of the heroin violation set forth in Supplemental Notice, a violation that the court concluded, “in itself, [wa]s sufficient for . . . a mandatory revocation [of Doswell’s supervised release].” The court then sentenced Doswell to the statutory maximum, twenty-four months of imprisonment.
On appeal, the only issue the Fourth Circuit dealt with, in United States v. Doswell, was whether, under Federal Rule of Criminal Procedure 32.1(b)(2), Mr. Doswell had a right to have the witnesses against him testify.
The government argued that under a prior Fourth Circuit case, and the general principle that revocation hearings are less formal, it didn’t have to have a witness there.
Mr. Doswell, instead, suggested the court of appeals look at the language of Rule 32.1(b)(2), which says that at a revocation hearing, a person has an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear
Since the district court spent exactly no time balancing whether the interests of justice didn’t require the chemist to testify against Mr. Doswell, the Fourth Circuit reversed the finding of violation and remanded.
We don’t do many posts on revocation hearings here, but the issue is important to both the federal process and our clients. If you have any questions regarding revocation (and especially how to avoid them) please give us a call at (480) 382-9287.